Dismissed

M/s.Venkata Chakradev Hydralics, v. The Deputy Commissioner of Commercial Taxes

Telangana HC30 Oct 2013WP/30023/2013

Case brief

AI extract

What is this about?

The court dismissed a writ petition filed by a VAT dealer challenging an assessment order on grounds of natural justice violations. The court held that the petitioner's failure to raise objections timely or seek an extension precluded invoking Article 226, directing pursuit of the statutory appeal instead.

What did the court decide?

Petitioner directed to pursue alternative remedy of appeal before Appellate Deputy Commissioner (CT).

M/s.Venkata Chakradev Hydralics, Vs The Deputy Commissioner of… — Income Tax | Telangana HC (2013)

¶1

THE HONOURABLE Ms. JUSTICE G. ROHINI AND THE HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY

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WRIT PETITION No.30023 OF 2013

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Date: 30.10.2013

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Between:

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M/s. Venkata Chakradev Hydralics Main Road, Cheemakurthy Rep. by its Managing Partner Sri K.Yedukondalu

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…Petitioner

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And

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The Deputy Commissioner of Commercial Taxes Nellore Division Nellore, and three others

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…Respondents

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THE HONOURABLE Ms. JUSTICE G. ROHINI AND THE HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY

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WRIT PETITION No.30023 OF 2013

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ORDER: (Per Hon’ble Ms. Justice G.Rohini)

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The petitioner company which is engaged in purchase and sale of automobile spares, earth moving spares, engine oils and lubricants, is a dealer registered under the provisions of the A.P. VAT Act, 2005 and is an assessee on the rolls of the respondent No.3.

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This Writ Petition is filed seeking a declaration that the order of assessment dated 28.08.2013 made by the respondent No.2 in Form VAT 305 for the tax period 2011-12 to 2012-13 is arbitrary and illegal, apart from being contrary to Section 13 of

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A.P. VAT Act, 2005 read with Rule 20 of A.P. VAT Rules.

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The learned Special Standing Counsel for Commercial Taxes appearing for the respondents at the outset raised an objection as to the maintainability of the writ petition on the ground that an alternative remedy of appeal is available against the impugned assessment order.

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The fact that an appeal lies against the impugned order before the Appellate Deputy Commissioner (CT) is not disputed by the learned counsel for the petitioner. It is also not in dispute that an appeal may be preferred by the petitioner within thirty days from the date of service of the impugned order of assessment and even thereafter the appellate authority may within a further period of thirty days admit the appeal if he is satisfied that sufficient cause is made out for not preferring the appeal within the prescribed period of thirty days.

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However, it is vehemently contended by the learned counsel for the petitioner that the impugned order is in violation of the principles of natural justice and therefore the writ petition is not maintainable notwithstanding the availability of the alternative remedy.

¶19

It is relevant to note that the impugned order of assessment is admittedly preceded by a show cause notice dated 17.07.2013. However, it is sought to be contended by the learned counsel for the petitioner that the seven days time granted in the show cause notice to submit the objections is not sufficient since it is a case where the assessing authority proposed to deny the input tax credit on purchases effected from various dealers. It is also submitted that as the Managing Partner of the petitioner company fell sick from 24.07.2013 and was unable to move out, the objections could not be submitted in response to the show cause

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notice. Thus, it is contended that it is a case where no proper opportunity was given to the petitioner and therefore the impugned order being in violation of the principles of natural justice the matter can be entertained by this Court under Article 226 of the Constitution of India. In support of his submission that the seven days time granted by the respondent No.2 in the show cause notice for submitting the objections is not sufficient, the learned counsel relied upon the Circular in CCT.Ref. No.L-V(2)/144/2010 dt. 04.05.2010.

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Having given our thoughtful consideration to the submissions made by the learned counsel for the petitioner, we do not find any substance in the contention that the impugned order is in violation of the principles of natural justice.

¶22

As noticed above, this is a case where the show cause notice was served on the petitioner in which it was specifically alleged that the returns filed by the petitioner were incorrect and incomplete and that the petitioner had violated the provisions of the A.P. VAT Act, 2005 by claiming input tax on the bogus purchase invoices. The particulars of all the alleged false transactions were furnished and the petitioner was called upon to submit his objections.

¶23

It is no doubt true that the impugned assessment order was passed without considering the petitioner’s objections. However, this is a case where in spite of receiving the show cause notice furnishing the particulars of the alleged lapses on his part, the petitioner himself failed to submit his objections within the time prescribed. Even assuming that the petitioner needed further time for submitting the objections, nothing prevented him to make a request for extension of time. Having failed to take any such steps and having failed to avail the opportunity to raise the

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objections to the proposed assessment, the petitioner cannot now contend that the impugned order is in violation of the principles of natural justice.

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Therefore, in our considered opinion the petitioner cannot straight away invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Hence, we are not inclined to entertain the writ petition and accordingly the same is dismissed leaving it open to the petitioner to pursue the alternative remedy of appeal. No costs.

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Consequently, miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.

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____________ G.ROHINI, J

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________________________ T.SUNIL CHOWDARY, J Date: 30.10.2013 Mva

M/s.Venkata Chakradev Hydralics, v. The Deputy Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

M/s.Venkata Chakradev Hydralics, v. The Deputy Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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